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Preemption May be Death by a Million Cuts for Consumers’ Historical Rights


The Supreme Court is faced yet again with the decision of whether to bar state court remedies to individuals who have suffered personal injury from drugs and products. The question is whether the state laws that protect product users and patients from the negligence of manufacturers are “preempted,” or wiped away, by federal laws. The cases the Court is currently faced with involve potentially dangerous vaccines, seat belt designs, and generic drugs. However, the preemption debate is about much more. It’s about whether injured individuals will ever have their day in court against the entities that failed to live up to their obligations.

“Preemption” exists when a state law is made invalid due to its interaction with a federal law, which will always be superior. However, not just any federal law will preempt a state law. A court must not invalidate a state law unless Congress intended to override the state law when it drafted the federal law. Merely being related is not enough. It must be clear that Congress’s purpose was to preempt. This can be demonstrated either by explicitly preempting state law in the federal law, or where it is impossible to satisfy both laws simultaneously, or where Congress’s involvement in a particular area is so comprehensive that it could be considered to have intended to preempt the entire area of law.

For a short time, there was something of a trend toward preemption, slowly chipping away at state remedies for injured parties. However, this trend has been curbed in recent court decisions, especially after the Supreme Court reminded us that there is a “presumption against preemption.” States have been the main protectors of injured parties historically, and the Court isn’t about to throw that all away. Consider the fact that the federal government tends to get involved only in areas where there is already a significant problem — areas where more must be done. For example, the Food and Drug Administration expanded to the regulation of pharmaceuticals at a time when the market was saturated with ineffective and dangerous drugs. Unfortunately, this means that the areas where state laws are most important, preemption may be more common. This will lead to less protection for consumers and patients, rather than more, in the areas where the most protection is needed.

While preemption may look like a struggle between state and federal government, this is not really the case. The true struggle is between manufacturers and the people injured by their products. Manufacturers prefer preemption because they can avoid states that set more stringent obligations for companies. They can also channel all their lobbying money into a few large federal entities, as oppose to courting all 50 states. But most importantly, the companies can avoid facing their accusers in court and avoid the judgment of a jury who can see the real injuries in the courtroom, instead of theoretical dangers presented to federal agencies. If the manufacturers are successful, there will be no avenue for awareness of these injuries and no remedy for the injured.

Preemption is about individuals and their access to the court system to vindicate their rights and obtain compensation for their products liability cases. Preempting state law remedies for individuals grants immunity to those who threaten the populace. It eliminates long-standing individual rights to compensation. It wipes out any accountability beyond what underfunded federal agencies can predict. And it throws the balance of power against consumers and patients. An open court system is critical to an accountable marketplace. Federal law can supplement these efforts to make consumers safer, but it cannot replace them. Congress should refrain from preempting state remedies as often as possible, and the courts should be extremely cautious in interpreting laws that do.

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